Twenty Years Later Taylor Still Has It Right: How the Canadian Human Rights Act’s Hate Speech Provision Continues to Contribute to Equality
Jane Terry Bailey · SSRN Electronic Journal · 2010
In 1990, the Supreme Court of Canada, in Keegstra and Taylor, upheld legislative restrictions on hate propaganda in the Criminal Code and the Canadian Human Rights Act (CHRA) as constitutionally justified limits on freedom of expression. In this article, the author refutes more recent attacks on the CHRA provision (which ultimately culminated in its repeal following publication of this article). She argues that technological, political and economic changes in the past two decades have created conditions ripe for the scapegoating and abuse of vulnerable groups, making human rights remedies for hate propaganda an even more easily justified component of an equality-based response to bigotry, prejudice and hatred than it was when the Supreme Court of Canada penned its decisions. Asserting that this altered social context undercuts the viability of a free market approach to hate propaganda, the article argues in favour of a principled approach that both respects the co-equal importance of the rights to equality and to free expression within the democratic matrix, and rejects the disproportionate exposure of vulnerable groups to harm that is characteristic of a free market approach.